Legal issues arising from “double-hatted” roles in national security

National Security is mainly regulated by Title 10, which doles out the roles of manning, training and equipping the uniformed military, and Title 50, which defines various other roles, including the intelligence community.
However, recently news stories have shed light on how often national security roles are being “double-hatted”.

An essay by P.W. Singer on the Armed Forces Journal (“Double-hatting around the law: The problem with morphing warrior, spy and civilian roles”) reports  and comments on three examples of this phenomenon. First, the Senate was recently asked to promote Army Gen. Keith Alexander, who already had a job leading the NSA, to be commander of the new Cyber Command. Secondly, it is reported that more than 120 airstrikes, carried out by Predator and Reaper aircraft into Pakistan against al-Qaida, the Taliban and other militant leaders, were mot conducted by the Air Force, but by the CIA; according to the author double-hatting the CIA into a war-fighting command was an expedient to avoid a public debate about the use of force in another country. Finally, Singer mentions “the continual spate of private contractors popping up in unexpected (and traditionally governmental) national security roles”, as a mean to avoid “harder decisions about shifting roles and missions”.

The author of the essay warns against this phenomenon, by saying that double-hatted roles risk “flouting the intent, if not the letter, of the most important legal codes that originally divided out roles in realms of policy and war”.

With respect to the three examples mentioned, Singer highlights the following shortcomings:

Double-hatting the NSA and military Cyber Command has raised deep concerns about the militarization not just of cyberspace, but of an intelligence agency’s core function of collection and analysis. By contrast, double-hatting the CIA into an operational air war command means its director (a former congressman from California) and his general counsels now handle not only weapons of war, but also issues of war, such as operational concept and strategy, rules of engagement, etc., that they do not have the background or mandate to perform. (…)
And finally double-hatting civilian contractors into government jobs has repeatedly led not only to money gone missing and embarrassing episodes of contractors gone wild, but also places the contractors themselves into roles of war for which their legal status remains murky.

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